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In a twist befitting of an M. Night Shyamalan story, the creator is again facing lawsuit accusing him of ripping off a 2013 independent movie for his AppleTV+ series Servant after it was revived by a federal appeals court.
Francesca Gregorini in 2020 filed a lawsuit against Apple, Shyamalan and his production company Blinding Edge Pictures. She alleged the first three episodes of Servant infringed on her movie, The Truth About Emanuel, which she wrote and directed. Both works explore a mother who cares for a doll as if it were real to grieve the loss of a child and her relationship with a nanny she hires to take care of the doll.
Reversing a federal judge’s decision to toss the case, the 9th Circuit U.S. Court of Appeals on Tuesday found the dismissal of the lawsuit at such an “early stage of the case was improper” because “reasonable minds could differ” on whether the stories are substantially similar.
“This is a case in which discovery could shed light on [the] issues that actually matter to the outcome,” reads the order. “In particular, expert testimony would aid the court in objectively evaluating similarities in cinematic techniques … determining the extent and qualitative importance of similar elements between the works, and comparing works in the different mediums of film and television.”
The decision is one of few in favor of creators who claim copyright infringement, although that may be starting to change. Steven Lowe, who filed a friend-of-the-court brief as president of the California Society of Entertainment Lawyers in support of Gregorini, says the 9th Circuit is “starting to give creators a fair shake.”
“We were, candidly, very concerned about the effect that the case would have, if left unchallenged,” Lowe tells The Hollywood Reporter. “Theft is rampant in the entertainment industry. It basically goes unchecked because there is so much bad precedent. Infringers would just assume take their chances in the courts. Finally, (perhaps) the pendulum is beginning to swing in the other direction.”
In the case, Apple moved to dismiss the lawsuit arguing that Servant and The Truth About Emanuel are not substantially similar and every similarity that did exist between the works was a generic idea not protected by copyright law.
Dismissal turned on an analysis of the works’ plots, themes, dialogue, mood, setting, pace, and characters, among other factors. Plot is the most important inquiry. U.S. District Judge Jon Walter concluded that beyond a common premise, the two works “tell very different stories.”
The 9th Circuit in an unpublished order, however, found that outright dismissal of the case was premature because discovery was not conducted.
“We couldn’t be happier with the ruling,” Gregorini’s attorney David Erikson tells THR via email. “The trial court dismissed this case without giving us the ability to look deeply into what happened here, through intensive discovery and with the help of expert witnesses. The Ninth’s Circuit’s reversal means we will have the opportunity to do just that, and deeply explore what certainly seems to be remarkable similarities between these two works.”
The decision in favor of Gregorini is at least the third from the federal appeals court since 2020 reversing a federal judge’s decision to toss a copyright lawsuit. In each of the cases, the 9th Circuit cautioned lower courts against imposing their views on what are supposed to be subjective inquiries requiring further arguments and expert testimony.
The 9th Circuit in 2020 revived a copyright lawsuit brought by writers Arthur Lee Alfred and Ezequiel Martinez Jr. alleging that Disney lifted their ideas for the first Pirates of the Caribbean movie. The order came on the heels of an identical decision bringing back to life a copyright lawsuit claiming Guillermo Del Toro plagiarized a 1969 play from Pulitzer prize winner Paul Zindel to write The Shape of Water. The court found in the two cases that they were too quickly dismissed since reasonable minds could differ on whether the works are substantially similar.
Both sides in the case over The Shape of Water agreed in 2021 to dismiss the lawsuit. Searchlight, one of the defendants, said in a statement at the time that the plaintiff “acknowledges, based on confidential information obtained during the litigation process, that his claims of plagiarism are unfounded.” Alfred’s suit is still pending.
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